Ruling may affect whether teachers must report gender-affirming care as child abuse

A lawsuit was filed by a group of parents and an advocacy organization called PFLAG against the Texas Department of Family and Protective Services regarding whether TDFPS could investigate parents for child abuse for providing gender-affirming medical care. As part of the lawsuit, the parents requested that the court temporarily prevent TDFPS from conducting such investigations until a final decision was made in the lawsuit. That request was granted and TDFPS appealed to the court of appeals.

The dispute arose from an attorney general opinion that concluded that dispensing certain drugs to children diagnosed with gender dysphoria could constitute child abuse. In response to that opinion, Gov. Greg Abbott directed TDFPS to conduct an investigation of any reported instance of these procedures in Texas. In doing so, the governor stated that Texas law imposes reporting requirements upon all licensed professionals who have direct contact with children who may be subject to child abuse, including teachers. TDFPS responded to this directive by announcing that it would begin investigating families who were believed to be providing puberty blockers or hormonal therapy to their children.

After TDFPS opened investigations into families based solely on reports that their children had been prescribed medical care for their diagnosed gender dysphoria, the families and PFLAG filed suit, arguing among other things that TDFPS was attempting to deprive them of their fundamental parental rights and were violating the guarantee of equal rights and equality under the law. The parents argued that they have fundamental constitutional rights as parents to direct their children’s medical care and that their children have the right to receive equal medical treatment. They asserted that the actions of TDFPS impair their rights because the policy of investigations means that parents must choose whether to follow the course of care prescribed by their children’s doctors (and thus subject themselves to investigation for child abuse) or to stop following their doctors’ prescribed course of care and risk harm to their children.

The court of appeals noted that parents have a protected interest to make decisions concerning the care, custody and control of their children, including medical decisions, and that this right is considered "a basic civil right." The Texas Constitution also provides that all persons have equal rights and that no person can be denied that equality on the basis of sex. It noted that the TDFPS investigations only target families of transgendered children who receive puberty blockers and hormone therapy, not families whose children receive those same medications for other reasons. It also found that the families had suffered harm as a result of the investigations. For example, one child attempted suicide on the day that the governor's directive was made to TDFPS and the outpatient psychiatric hospital that the child was referred to subsequently reported the mother for child abuse after the staff learned that the child had been prescribed medication for gender dysphoria. The parents also testified that they feared that their children would be taken away from them. Finally, the families introduced testimony from physicians that gender dysphoria is a recognized medical diagnosis and that withholding or withdrawing medical treatment for that condition causes mental and physical harm.

The court of appeals also examined whether the actions of TDFPS constituted the adoption of a new rule without going through the proper procedures. It noted that the attorney general opinion and directive to TDFPS broadened the definition of "child abuse" to include gender-affirming care and that prior to that time, no investigations on that basis were opened or conducted ty TDFPS. The impact of these actions was that families that had previously not been subjected to investigation for child abuse now were.

For these reasons and others, the court of appeals held that TDFPS cannot investigate families for child abuse based solely on their decision to provide gender-affirming care for their children. It is likely the decision will be appealed to the Texas Supreme Court. If the decision stands, it appears that teachers and other professionals are not required to make reports of suspected child abuse solely on the basis that they become aware a child is receiving gender-affirming care. Since failure to report suspected child abuse is a crime, TCTA members should call the TCTA Legal Department if they have any questions about whether to report while being mindful that a report must be made with 48 hours.

This decision is temporary and may be changed in the future based on the ultimate outcome of the lawsuit.